Citation Nr: 0207825
Decision Date: 07/15/02 Archive Date: 07/19/02
DOCKET NO. 97-15 582 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart
ATTORNEY FOR THE BOARD
S. Higgs, Counsel
INTRODUCTION
The veteran had active military service from October 1970 to
October 1973. This matter comes to the Board of Veterans'
Appeals (Board) from an August 1996 decision by the
Department of Veterans Affairs (VA) Oakland Regional Office
(RO), which denied service connection for PTSD. The case was
remanded by the Board in December 1997 for the purpose of
further development of the evidence and adjudication to
include consideration of new developments in the law and new
regulations.
FINDINGS OF FACT
1. The veteran did not engage in combat with enemy forces
during active service.
2. The is no credible supporting evidence that his claimed
in-service stressors occurred.
3. The veteran's credibility as to his reporting of PTSD
symptoms, history, and in-service stressors is extremely low.
CONCLUSION OF LAW
PTSD was not incurred in or aggravated by the veteran's
active military service. 38 U.S.C.A. §§ 1110, 5107 (West
1991 & Supp. 2001); 38 C.F.R. §§ 3.303, 3.304(f) (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes that there has recently been a significant
change in the law with enactment of the Veterans Claims
Assistance Act of 2000 (VCAA). VA has recently issued final
regulations to implement these statutory changes. See Duty
to Assist, 66 Fed. Reg. 45620, et seq. (Aug. 29, 2001) (to be
codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159
and 3.326(a)).
VCAA provides that on receipt of a complete or substantially
complete application, VA shall notify the claimant and the
claimant's representative, if any, of any information, and
any medical or lay evidence, not previously provided to VA
that is necessary to substantiate the claim. 38 U.S.C. §
5103 (West Supp. 2001). In this case, the Board concludes
the discussions in the rating decisions, the Statement of the
Case, and Supplemental Statements of the Case (the most
recent having been issued in September 2001), as well as in
the Board's December 1997 remand of this case, informed the
veteran of the information and evidence needed to
substantiate this claim and complied with VA's notification
requirements.
VCAA also requires VA to make reasonable efforts to assist
the claimant in obtaining evidence necessary to substantiate
a claim for benefits, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C. § 5103A (West Supp. 2001). In this case, the RO
has obtained the veteran's service medical records. The
pertinent identified VA and other medical records have been
obtained and associated with the claims folder. The RO has
obtained two responses from U.S. Armed Services Center for
Research or Unit Records ((USCRUR), both documenting an
inability to corroborate the veteran's claimed stressors.
Many of the veteran's contentions are rendered less than
credible by the record. For reasons discussed in the
analysis below, his claimed stressors and the histories
provided to examiners and care providers are not believable.
There is no reasonable possibility of substantiating these
contentions because they are not plausible. The Board has
determined that a VA compensation examination is not
warranted in this case because of the less than plausible
nature of the veteran's claimed stressors. Without a
plausible claimed stressor, any diagnosis by a VA examiner of
PTSD would be insufficient to substantiate a claim for
service connection for PTSD. See 38 C.F.R. § 3.304(f)
(requiring credible supporting evidence of non-combat
stressor as well as diagnosis of PTSD).
In light of the foregoing, the Board finds that VA has
satisfied its duty to assist the veteran in apprising him as
to the evidence needed, and in obtaining evidence pertaining
to his claims. 38 U.S.C.A. §§ 5103, 5103A, 5107(a) (West
1991 & Supp. 2001). No useful purpose would be served in
remanding this matter for yet more development. Such a
remand would result in unnecessarily imposing additional
burdens on VA, with no benefit flowing to the veteran. The
U.S. Court of Appeals for Veterans Claims (Court) has held
that such remands are to be avoided. See Winters v. West, 12
Vet. App. 203 (1999) (en banc), vacated on other grounds sub
nom. Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000); Soyini
v. Derwinski, 1 Vet. App. 540 (1991); Sabonis v. Brown, 6
Vet. App. 426 (1994).
Also, the Board notes that in the September 2001 supplemental
statement of the case, the RO continued to adjudicate the
veteran's claim for psychiatric disability under a standard
that includes the requirement of a "clear diagnosis" of
PTSD. The regulations were amended on June 18, 1999, and
retroactive to March 7, 1997, to require "medical evidence
diagnosing" PTSD rather than a "clear diagnosis" of PTSD.
See 38 C.F.R. § 3.304(f) (2001). The new regulations are
liberalizing regulations more favorable to the veteran's
claim and should be applied in this present case. Karnas v.
Derwinski, 1 Vet. App. 308 (1991). The RO also denied the
veteran's claim based on the finding that the evidence was
inadequate to corroborate the claimed non-combat stressors.
This latter basis is the Board's determinative ground for
denying the veteran's appeal. Because this was a requirement
under both the old and new regulations, the veteran is not
prejudiced by the Board's adjudication of the claim
notwithstanding the RO's error in using the old "clear
diagnosis" standard. Bernard v. Brown, 4 Vet. App. 384
(1993).
Factual Background
The veteran's service records show that he was trained and
worked in the military as clerk typist. He served from
October 1970 to October 1973. His service personnel records
show that he served in Bangkok, Thailand, as a clerk typist
and message center clerk from April 1971 to October 1972.
His military decorations do not reflect any combat duty.
Service medical records, to include the veteran's September
1973 service discharge medical examination, are negative for
treatment, complaint or diagnosis of a psychiatric
disability.
In February 1996, the veteran submitted an application for
service connection for PTSD. Later that month, he wrote to
the RO to describe his claimed stressors, to include being
told in May 1971 by an officer that the bombing of Pearl
Harbor was a prearranged set-up. He described the informing
officer as looking both ways during the conversation, and
having known several officers who had worked at the Pentagon
doing classified work on Pearl Harbor. He wrote that in June
1971, as part of his duties, he saw Vietnam war military
casualty reports and then saw corresponding grossly
underreported casualties in the press. He further wrote that
from about July to August 1971 he worked in the casualty
section, and reviewed cards reporting individual casualties,
including black dots on outlines of bodies indicating the
point of injury. He wrote that in approximately June 1972,
while stationed at the Bangkok detachment, he became wary of
officers and was told by 3 or 4 sergeants that certain Army
officers wanted to "silence me for good." He wrote that in
July 1972 he was exposed to a steady stream of information
about the war, to include under-reporting of casualties. He
wrote that from August to October 1972, he was assigned to a
motor pool, taking over a position that involved reporting
Thai nationals who were selling gasoline on the black market.
He said his predecessor's car had been fire bombed with his
predecessor in it, and that taking over this position caused
him great anxiety. He said that he reported no names and
quit working at the motor pool, and that his work ethic was
ruined by this position.
In a March 1996 letter, a private social service worker wrote
that she saw the veteran for only one session in July 1993.
He reportedly came to her for help determining why he seemed
unable to hold down a job. She assessed the veteran's
prognosis as poor, and saw several potential diagnoses,
including personality disorder, substance-related disorder,
and rule out schizophrenia/paranoid type.
In April 1996, the veteran underwent psychiatric examination
for the purpose of determining entitlement to Social Security
Administration (SSA) disability benefits. He had applied to
SSA claiming he could not work due to PTSD. He gave a
history of not being a combat veteran, but having been
exposed to photographs and pictures of mutilated bodies. The
history included having had an in-service job involving the
transport and coding of war injuries and deaths. He
described current symptoms as including "nightmares and
intrusive thoughts and hypervigilence during the daytime
about these mutilations." The psychiatrist's diagnoses were
major depressive disorder, mild, and possible PTSD. An SSA
Psychiatric Review Technique form completed by the same
psychiatrist appears to indicate by a series of checked boxes
that the veteran had an affective disorder, a substance abuse
disorder, and a disturbance of mood, accompanied by a full or
partial manic or depressive syndrome, as evidenced by
depression. Later in April 1996, the veteran's claim for SSA
disability benefits was denied.
An April 1996 report of the veteran's condition from a
clinical social worker from the Oakland Vet Center, includes
a diagnosis of PTSD, chronic. The report states that during
service he was put into a life-threatening situation by an
officer. The balance of the report focuses on the nature and
severity of the veteran's ongoing symptoms.
In May 1996, the veteran submitted correspondence stating
that service medical records would not show treatment for
PTSD, since PTSD was not a recognized illness until many
years after his tour of duty in Vietnam. He identified
health care providers who had recently diagnosed him with, or
treated him for, PTSD.
Treatment records from January 1996 to March 1998 at the
Oakland Vet Center include recurring diagnoses of PTSD and
substance abuse. The records include notations that the
veteran was unenthusiastic about treatment, but wanted to
continue his treatment at the Vet Center to support his PTSD
claim. In June 1997, his first counselor left VA and he
started treatment with a new counselor. In December 1997, he
was assessed as delusional. The treating counselor indicated
that the veteran may have PTSD, but that "svc (SCD)" was
questionable, apparently calling into question whether his
service was adequate to support a claim for PTSD. In January
1998, the counselor wrote that the veteran's stressor was
tenuous as he was stationed in Thailand, never fired his
weapon at the enemy, and used drugs heavily; the stressors
cited were a jeep explosion and and casualty diagnosis cards;
it was further noted that he heavily focused on his claim of
service connection for PTSD, and was unable to look at life
beyond resolution of his appeal. In February 1998, he
claimed to his counselor that seeing reports of the
casualties during service was as traumatic as seeing actual
deaths of soldiers in combat. The counselor wrote that the
veteran seemed to have trouble establishing a military-
related stressor. The counselor's assessment was
dissociative, unable to focus, no real goal in mind, does not
desire treatment or change, only service-connected
disability. The counselor's March 1998 notes state that the
veteran had decided to terminate treatment with the counselor
secondary to the counselor's unwillingness to accept his PTSD
as combat-related.
VA records of psychiatric treatment from June 1997 to April
1999 show recurring diagnoses of PTSD, substance abuse, and
attention-deficit hyperactivity disorder (ADHD). A September
1997 note states that a possible mechanism was PTSD, self
medicated with substances, causing brain alteration leading
to ADHD. April 1999 notes state that the veteran was still
pursuing his PTSD claim and certainly exhibited the social
isolation, disturbed sleep and nightmares, which were all
part of the syndrome. The assessment was ADHD, and rule out
PTSD.
In February 1998, a clergyman wrote in support of the
veteran's claim, stating that it appeared that he may have
PTSD, and that with assistance from VA through counseling and
the appropriate drug prescription, the veteran may be able to
get his life back in order. He described the veteran's
efforts through the church of trying to make a positive step
to rid himself of negative feelings and anxieties that he
experienced in his overseas duty of 1971-1972.
In February 1999, the veteran responded to an RO request for
more specific stressor information. He indicated that a
service comrade, Verlyn, was sent to the U.S. Army hospital
in Bangkok, Thailand, after his car was fire bombed in
retribution for giving names of Thai citizens who were
selling gasoline on the black market. He wrote that Verlyn
was almost killed in the incident. He also indicated that a
Kenneth H. could give documentation on threats against him by
Army officers while assigned to the Bangkok detachment in
1972.
Also in February 1999, the U.S. Armed Services Center for
Research of Unit Records ((USCRUR) indicated to the RO that
they had coordinated their research with the U.S. Army
Military History Institute and the National Archives and
Records Administration, and that they were unable to obtain
unit histories for the veteran's assigned units in Thailand.
They did, however, enclose monthly activity reports submitted
by the 46th Special Forces Company for July and August 1971.
These reports do not corroborate the veterans' claimed
stressors.
In April 1999, the veteran submitted a photograph showing a
motor pool area at which he claimed he was supposed to
observe and report on Thai nationals selling Army gasoline on
the black market.
In September 1999, the USCRUR reported that the U.S. Army
Crime Records Center had no record concerning the possible
fire bombing of a vehicle containing a Verlyn, Daniel S. or
Richard S. in Thailand. Service department records show that
these fellow servicemen of the veteran were hospitalized in
Bangkok during June and July 1972.
Analysis
Service connection may be granted for disability resulting
from personal injury suffered or disease contracted in the
line of duty or for aggravation of a pre-existing injury or
disease in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West
1991); 38 C.F.R. §§ 3.303, 3.306 (2001). Service connection
may also be granted for any disease diagnosed after
discharge, when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d).
A claim of service connection for a disability must be
accompanied by medical evidence which establishes that the
claimant currently has the claimed disability. Absent proof
of a present disability there can be no valid claim. See,
e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (38
U.S.C.A. § 1110 requires current symptomatology at the time
the claim is filed in order for a veteran to be entitled to
compensation); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir.
1997) (38 U.S.C. § 1131 requires the existence of a present
disability for VA compensation purposes). See also, Sanchez-
Benitez v. West, 13 Vet. App. 282 (1999) (there is no basis
for a grant of service connection for a disability absent
medical evidence that the veteran presently has a chronic
disability which had its onset or is otherwise related to
service). See also, Hickson v. West, 12 Vet. App. 247
(1999).
The standard of proof to be applied in decisions on claims
for veterans' benefits is set forth in 38 U.S.C. § 5107 (West
Supp. 2001). A veteran is entitled to the benefit of the
doubt when there is an approximate balance of positive and
negative evidence. See also, 38 C.F.R. § 3.102 (2001). When
a veteran seeks benefits and the evidence is in relative
equipoise, the veteran prevails. See Gilbert v. Derwinski, 1
Vet. App. 49 (1990). The preponderance of the evidence must
be against the claim for benefits to be denied. See Alemany
v. Brown, 9 Vet. App. 518 (1996).
In order for service connection to be awarded for PTSD, three
elements must be present: (1) a current medical diagnosis of
PTSD; (2) medical evidence of a causal nexus between current
symptomatology and the claimed in-service stressor; and (3)
credible supporting evidence that the claimed in-service
stressor actually occurred. 38 C.F.R. § 3.304(f); Moreau v.
Brown, 9 Vet. App. 389 (1996).
38 U.S.C.A. § 1154(b) (West 1991) provides that, with respect
to combat veterans, VA shall accept as sufficient proof of
service-connection satisfactory lay or other evidence of
service incurrence or aggravation of such injury or disease,
if consistent with the circumstances, conditions and
hardships of such service. Service-connection of such injury
or disease may be rebutted by clear and convincing evidence
to the contrary. See also, 38 C.F.R. § 3.304(d) (2001).
In Zarycki v. Brown, the Court set forth the analytical
framework and line of reasoning for determining whether a
veteran was exposed to a recognizable stressor during
service, which, as discussed above, is an essential element
in solidifying a claim for service connection for PTSD. 6
Vet. App. 91 (1993). In Zarycki, it was noted that, under 38
U.S.C.A. 1154(b), 38 C.F.R. 3.304(d) and (f), and the
applicable provisions contained in VA Manual 21-1, the
evidence necessary to establish the incurrence of a
recognizable stressor during service to support a claim of
service connection for PTSD will vary depending on whether
the veteran "engaged in combat with the enemy." See Hayes v.
Brown, 5 Vet. App. 60 (1993). The determination as to whether
the veteran "engaged in combat with the enemy" is made, in
part, by considering military citations that expressly denote
as much. Doran v. Brown, 6 Vet. App. 283 (1994). However,
the Court has recently held that the Board may not rely
strictly on combat citations or the veteran's MOS to
determine if he engaged in combat; rather, other supportive
evidence of combat experience may also be accepted. See
Dizoglio v. Brown, 9 Vet. App. 163 (1996); West v. Brown, 7
Vet. App. 70 (1994). If combat is affirmatively indicated,
then the veteran's lay testimony regarding claimed combat-
related stressors must be accepted as conclusive as to their
actual occurrence and no further development or corroborative
evidence will be required, provided that the veteran's
testimony is found to be "satisfactory," i.e., credible, and
consistent with the circumstances, conditions, or hardships
of such service. Zarycki, 6 Vet. App. at 98.
If there is no combat experience, or if there is a
determination that the veteran engaged in combat but the
claimed stressor is not related to such combat, there must be
independent evidence to corroborate the veteran's statement
as to the occurrence of the claimed stressor. Doran, 6 Vet.
App. at 288-89 (1994). The veteran's testimony, by itself,
cannot, as a matter of law, establish the occurrence of a
non-combat stressor. Dizoglio, 9 Vet. App. at 166 (1996).
Further, an opinion by a mental health professional based on
a post-service examination of the veteran cannot be used to
establish the occurrence of a stressor. Moreau, 9 Vet. App.
at 395-96; Cohen v. Brown, 10 Vet. App. 128 (1997).
In this case, while the evidence reveals that PTSD was
diagnosed based on the veteran's claimed experiences during
active service, his DD Form 214 does not include awards or
decorations showing that he engaged in combat with the enemy,
and the identified non-combat stressors used in the diagnosis
of PTSD have not been verified.
The medical opinions as to whether the veteran has PTSD range
from positive to uncertain to negative. The opinions from
physicians and social workers asserting that the veteran does
have PTSD might reasonably be called into question on the
basis of whether the veteran has provided an accurate history
to the providers and examiners in question. See Swann v.
Brown, 5 Vet. App. 229, 233 (1993) (a physician's diagnosis
that relies on history related by the claimant is no better
than facts alleged by the claimant). In any event, many
providers have rendered assessments as to whether the veteran
has PTSD, and the most accurate characterization of the
evidence on this point is that the treating and examining
providers have been uncertain as to whether he has PTSD, with
opinions of individual providers wavering over time, and
opinions differing among providers. Given the equivocal
state of the record, it would not be correct to deny the
veteran's claim on the ground that he has not been diagnosed
as having PTSD.
The determinative facts in this case are (1) that the veteran
did not serve in combat, and (2) there is no credible
supporting evidence that the claimed in-service stressors
occurred. See 38 C.F.R. § 3.304(f). There is an explicit
opinion from a social worker to the effect that the veteran
has PTSD because during service he was put into a life-
threatening situation by an officer. This statement could
refer to the claimed order from an officer instructing the
veteran to identify Thai nationals selling black market Army
gasoline, or to the claimed incident in which the veteran was
told by 3 or 4 sergeants that certain Army officers wanted to
"silence me for good," or perhaps to the officer informing
the veteran that Pearl Harbor was a set-up, or even to some
other incident not identified by the veteran in connection
with his claim for service connection for PTSD. In any
event, there is no credible supporting evidence of any
officer putting the veteran in a life-threatening situation.
As a factual matter, the idea of 3 or 4 sergeants telling the
veteran that certain Army officers wanted to silence him for
good is, in the undersigned's judgment, patently incredible.
In the context of his listed duties as clerk typist, the
veteran's claims of being put in a life-threatening situation
in connection with identifying Thai nationals selling gas on
the black market, after his predecessor was seriously injured
when his care was fire bombed, is also unbelievable. It
therefore comes as little surprise that the veteran and
USCRUR have been unable to provide credible supporting
evidence that these claimed in-service stressors actually
occurred.
The claimed stressor that the veteran was surreptitiously
informed in May 1971 by an officer that the bombing of Pearl
Harbor was a prearranged set-up is deemed to be nothing short
of wacky, highly irrational and unbelievable, and it carries
no evidentiary weight. Such an assertion also, by the way,
has a rather strong negative impact on the veteran's overall
credibility in this proceeding before the Board.
Further, in his initial correspondence the veteran claimed to
have seen combat injuries coded and identified by black dots
on outlines of bodies, while in later examination and
treatment sessions he claims to have seen pictures and
photographs of mutilated bodies. The earlier accounts of
black dots on bodies render the later accounts, to a
psychiatric examiner who evaluated the veteran in connection
with a claim for SSA disability benefits, of viewing
photographs and pictures of mutilated bodies less than
credible.
Notations by treatment providers that the veteran continued
his treatment primarily for the purpose of supporting his
claim of service connection for PTSD, and that this was at
times his primary focus in life, cast strong doubt as to the
reporting of symptoms and stressors provided during treatment
for PTSD and, more generally, as to his credibility in this
proceeding.
The March 1996 letter from the social service worker, who saw
the veteran for only one session in July 1993, further
undermines the veteran's reporting of symptoms and in-service
stressors. At that time, over two years prior to the
veteran's claim for service connection for PTSD, the veteran
apparently failed to mention even one symptom or aspect of
the history as later told while seeking monetary compensation
from VA via his claim of service connection for PTSD. The
veteran's history and symptoms were consistent with
personality disorder, substance-related disorder, and rule
out schizophrenia/paranoid type, but apparently were not
suggestive of PTSD.
The June 1997 to December 1998 treatment notes of a Vet
Center counselor give rise to a strong inference that the
counselor declined to be manipulated to support the veteran's
claim for service connection for PTSD, based on the veteran's
behavior and other factors suggesting a lack of valid
stressors. This further undermines the veteran's credibility
in the present case.
In summary, the legal basis for denying the claim for service
connection for PTSD is that the veteran did not serve in
combat, and there is no credible supporting evidence that the
claimed in-service stressors actually occurred. See 38
C.F.R. § 3.304(f). As a factual matter, this is an
understatement - the veteran's claim for service connection
for PTSD appears to be based on a false history, calculated
reporting of current symptoms, manipulation of treating
physicians and counselors, and claimed in-service stressors
that are patently incredible. The law does not require the
Board or the Secretary of Veterans Affairs to consider the
patently incredible to be credible. See Duran v. Brown, 7
Vet. App. 216 (1994). The veteran's overarching lack of
credibility is relevant in this case because it is a basis
for the Board's decision not to further develop the veteran's
claim.
As the evidence so strongly preponderates against the
veteran's claim for service connection for PTSD, the benefit
of the doubt is not for application in this case. 38 C.F.R.
§ 3.102.
ORDER
The claim for service connection for PTSD is denied.
J.F. GOUGH
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.